O'Malley, Robert C. v. Litscher, Jon E.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3415
ROBERT C. O’MALLEY,
Plaintiff-Appellant,
v.
JON E. LITSCHER, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-0032—Patricia J. Gorence, Magistrate Judge.
____________
SUBMITTED AUGUST 16, 2006—DECIDED OCTOBER 16, 2006
____________
Before POSNER, KANNE, and ROVNER, Circuit Judges.
PER CURIAM. In the spring of 2002, Wisconsin inmate
Robert O’Malley embarked on what he characterizes as a
religious fast. Though he continued to drink water, he
stopped eating altogether because, he says, he was using the
“power of prayer and fasting” to implore God to move his
former accusers to recant the testimony that led to his
conviction and imprisonment for sexual assault. We are
skeptical that his refusal to eat really was a religious
exercise; O’Malley boasted to prison staff that this “fast,”
like two others before it, would win him a transfer to a
different prison, and he admitted in his response to the
2 No. 05-3415
defendants’ motion for summary judgment that he hoped to
draw public attention to his assertion of innocence in order
to attract free legal assistance. But the district court assumed
that O’Malley’s fast was rooted in sincere belief, and we will
not disturb that assumption since it is not material to our
disposition of the case. Whatever the reason for it, about
three weeks into the fast, Brian Bohlmann, a prison doctor,
concluded that O’Malley had become seriously dehydrated
and would likely suffer significant harm if he did not
receive hydration and nutrition within 48 hours. Bohlmann
contacted legal counsel for the Wisconsin Department of
Corrections, who filed an emergency petition in the state
circuit court requesting authorization to force-feed O’Mal-
ley. After an ex parte hearing, the state court granted the
authorization for a period of five days. Bohlmann ordered
O’Malley confined in five-point restraints and supervised an
intravenous feeding that began that evening. Also present
was prison psychologist Barbara Seldin. About 21 hours
later, Bohlmann concluded that O’Malley was out of danger
and ended the forced feeding. O’Malley then began eating
on his own, but he stopped again a few days after the
expiration of the ex parte order. At that point legal counsel
sought a permanent order authorizing medical staff to force-
feed O’Malley. The state court granted the order after a
hearing in which O’Malley was allowed to participate by
telephone.
In 2004 O’Malley sued Bohlmann, Seldin, and four others
associated with the prison under 42 U.S.C. § 1983. He
claimed first, that the defendants deprived him of due
process by obtaining the court orders without affording him
a lawyer, and by securing the initial order on an ex parte
basis. Second, he claimed that the defendants denied him
due process by misrepresenting to the state court that he
was dehydrated and thus duping the court into issuing the
No. 05-3415 3
ex parte order on the false premise that force-feeding was
medically necessary. Third, O’Malley claimed Bohlmann
and Seldin violated his rights under the Eighth Amendment
by acting on the ex parte order without disclosing its
existence and giving him a chance to “comply” voluntarily,
and by continuing the intravenous feeding even after he
learned about the order and promised to eat. Fourth,
O’Malley claimed that the defendants, especially Bohlmann,
violated the Eighth Amendment during the force-feeding
because it took several attempts to place the intravenous
feeding line, his restraints left marks on his skin, he was
unable to use the bathroom for the full 21 hours, and he
sustained burns on his back because he vomited during the
procedure and was compelled to lie in the vomit. Finally,
O’Malley claimed that the defendants violated his rights
under the Religious Land Use and Institutionalized Persons
Act (RLUIPA), 42 U.S.C. § 2000cc-1, by stopping his reli-
gious fast without a compelling reason.
The district court (a magistrate judge, sitting by consent)
dismissed the suit in part for lack of subject-matter juris-
diction and granted summary judgment to the defendants
on what remained. The court noted that part of the relief
O’Malley sought was an injunction setting aside the
state court’s permanent order, a remedy that would run
afoul of the Rooker-Feldman doctrine, which prohibits a
federal court other than the United States Supreme Court
from reviewing a state-court judgment in the absence of
express congressional authorization. See Exxon Mobil Corp.
v. Saudi Basic Indus. Corp., 544 U.S. 280, 291-92 (2005); 4901
Corp. v. Town of Cicero, 220 F.3d 522, 527 (7th Cir. 2000). The
district court then dismissed the suit to the extent it con-
cerned the manner in which the ex parte and permanent
orders were obtained, reasoning that these issues
were inextricably intertwined with the state-court judgment
4 No. 05-3415
and therefore barred by Rooker-Feldman. The court permitted
O’Malley to proceed on his Eighth Amendment and
RLUIPA claims, but held that his case against four of the
defendants collapsed immediately because he failed to
present any evidence that those defendants were personally
involved in the relevant events. The district court concluded
that Bohlmann alone of the defendants was responsible for
execution of the force-feeding, and explained that the
undisputed evidence, which included videotapes of the
procedure, established that he acted reasonably. As for the
RLUIPA claim, the court held that both Bohlmann and
Seldin were involved, but that neither could be held liable
because they had used the least restrictive means of further-
ing a compelling interest in institutional security.
On appeal O’Malley does not challenge the dismissal of
any defendant except Bohlmann and Seldin, nor does he
challenge the dismissal of his claims as they relate to the
process of obtaining the two state-court orders. These
matters therefore are waived, and we need not address
them. See Lac du Flambeau Band of Lake Superior Chippewa
Indians v. Norton, 422 F.3d 490, 502 n.4 (7th Cir. 2005);
Crestview Vill. Apartments v. United States Dep’t of Hous. and
Urban Dev., 383 F.3d 552, 555 (7th Cir. 2004). O’Malley does
challenge the district court’s Eighth Amendment and
RLUIPA determinations. But we disagree with the district
court only in that we think more of his claims are barred by
Rooker-Feldman.
To the extent O’Malley claims that the defendants violated
his rights under RLUIPA by preferring intravenous feeding
over allowing him to eat, his theory is baseless. As the
district court points out, the choice of methods for ending
the fast did not implicate O’Malley’s right to religious
exercise because the asserted exercise consisted of the fast
alone. O’Malley does not contend that his religious views
No. 05-3415 5
forbid intravenous feeding or require nutrition to be taken
by mouth; if the defendants interfered with his right to
religious exercise, they did so because of the act, not the
method, of stopping his fast. And since the defeat of his fast
was an injury caused by a state-court judgment, Rooker-
Feldman bars any claim under RLUIPA. See Lance v. Dennis,
126 S. Ct. 1198, 1201 (2006) (per curiam); Exxon Mobil Corp.,
544 U.S. at 284; Burke v. Johnston, 452 F.3d 665, 667 (7th Cir.
2006). It makes no difference that O’Malley’s disagreement
with the state-court order is cast in the form of a civil-rights
action, see Holt v. Lake County Bd. of Comm’rs, 408 F.3d 335,
336 (7th Cir. 2005) (per curiam); Crestview Vill. Apartments,
383 F.3d at 556-57; Long v. Shorebank Dev. Corp., 182 F.3d 548,
557 (7th Cir. 1999); Wright v. Tackett, 39 F.3d 155, 157-58 (7th
Cir. 1994) (per curiam); Ritter v. Ross, 992 F.2d 750, 753-54
(7th Cir. 1993), nor does it matter that O’Malley’s RLUIPA
argument was not made in the state proceedings, see District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483 n.16
(1983); Long, 182 F.3d at 554; Garry v. Geils, 82 F.3d 1362,
1369 (7th Cir. 1996); Ritter, 992 F.2d at 753-54.
The district court seems to believe that Rooker-Feldman is
inapplicable because the defendants acted on a state-court
order that was “not mandatory.” We are puzzled by this
since we have said repeatedly that carrying out a state
court’s decision is not an independent violation of the
Constitution. See Holt, 408 F.3d at 336; Landers Seed Co. v.
Champaign Nat’l Bank, 15 F.3d 729, 732 (7th Cir. 1994); GASH
Assocs. v. Vill. of Rosemont, 995 F.2d 726, 727 (7th Cir. 1993);
Owens-Corning Fiberglas Corp. v. Moran, 959 F.2d 634, 635
(7th Cir. 1992); see also Homola v. McNamara, 59 F.3d 647, 651
(7th Cir. 1995) (“[I]f a suit seeking damages for the execu-
tion of a judicial order is just a way to contest the order
itself, then the Rooker-Feldman doctrine is in play”). More
important, we do not share the district court’s view that the
6 No. 05-3415
order at issue is discretionary. The order provides that “any
licensed physician, or a person acting under his direction
and control, may evaluate and provide to Robert O’Malley
any feeding or hydration or both, by force or otherwise,
which in his or her medical judgement is advisable to
prevent significant risk of serious damage or death to Robert
O’Malley.” The order empowered the defendants to end
O’Malley’s fast, and more than that, it authorized the use of
force to accomplish that end. The only condition was that
medical judgment be exercised; the phrase “by force or
otherwise,” upon which O’Malley seizes, does not introduce
a discretionary element. It simply recognizes the possibility
that the object of the order might not resist its execution, as
indeed O’Malley insists he would not have.
And we see no other reason to doubt that Rooker-Feldman
should apply. If something in the state’s procedures had
prevented O’Malley from raising his constitutional chal-
lenges to the defendants’ actions, we would recognize an
exception from Rooker-Feldman. See Holt, 408 F.3d at 336 n.1
(per curiam); Taylor v. Fed. Nat’l. Mortgage Ass’n., 374 F.3d
529, 533 (7th Cir. 2004); Long, 182 F.3d at 558. But there is no
evidence of any such obstacle. We presume that the defen-
dants sought to force-feed O’Malley under the authority of
the Wisconsin statute providing generally for ex parte
restraining orders, see Wis. Stat. § 813.025(2), because the
orders themselves specify no governing statute or regulation
and because cases from other states involving challenges to
similar orders have characterized the orders as temporary
restraining orders or ex parte preliminary injunctions, see
Walker v. Horn, 385 F.3d 321, 325 (3d Cir. 2004); People ex rel.
Illinois Dept. of Corr. v. Fort, 815 N.E.2d 1246, 1247 (Ill. App.
Ct. 2004); People ex rel. Illinois Dept. of Corr. v. Millard, 782
N.E.2d 966, 968 (Ill. App. Ct. 2003). We are not aware of any
decision holding that such an order is final—though it
No. 05-3415 7
might be, see Doe v. Vill. of Crestwood, 917 F.2d 1476, 1477
(7th Cir. 1990) (holding that temporary restraining order
against holding mass during festival was appealable
because it was “not properly characterized as a ‘temporary’
restraint”; it had effect of forbidding mass entirely). But
even if it was nonfinal, O’Malley had appropriate recourse
because he had the opportunity to make his constitutional
arguments to the state court during his hearing on the
permanent order, and that order was appealable as of right.
See Wis. Stat. § 808.03(1); In re Incorporation of Fitchburg, 299
N.W.2d 199, 200 (1980) (holding “injunction order final
and thus appealable”). Appeal from a final order “brings
before the court all prior nonfinal judgments, orders and
rulings adverse to the appellant.” Wis. Stat. § 809.10(4).
Moreover, O’Malley would not have been deprived of an
opportunity to challenge the first force-feeding order even
if the proceedings had ended there. If he had not stopped
eating again, the defendants might not have followed
through with the permanent order. But Wisconsin did not
require him to wait and see. State law provides for per-
missive appeal of nonfinal orders within 14 days. See Wis.
Stats. §§ 808.03(2), 809.50(1); see also Sandy v. Sandy, 316
N.W.2d 164, 168 (Wis. Ct. App.) (noting that under earlier
version of Wis. Stat. § 813.025(2) “orders were issued ex
parte with an opportunity to petition for review”), aff’d, 326
N.W.2d 761 (1982). That being so, it does not matter that the
order was ex parte. See Rosenfeld v. Egy, 346 F.3d 11, 12-13,
18-19 (1st Cir. 2003); Mandel v. Town of Orleans, 326 F.3d 267,
272 (1st Cir. 2003) (applying Rooker-Feldman to ex parte
order because plaintiff “was formally a party to the enforce-
ment proceeding and was free to ask the state court to undo
or revisit its enforcement order on constitutional or other
grounds; she was not free to secure its effective invalidation
by a federal judge”); Goodman v. Sipos, 259 F.3d 1327, 1334-
8 No. 05-3415
35 (11th Cir. 2001) (noting that “plaintiffs had a reasonable
opportunity to bring their constitutional challenges to the
veracity of Sipos’ affidavit and the propriety of the state
court’s ex parte proceeding in the state court.”); Jordahl v.
Democratic Party of Virginia, 122 F.3d 192, 203 n.11 (4th Cir.
1997) (finding Rooker-Feldman applicable because the
plaintiff “may challenge the state court’s order in the
Virginia Supreme Court, the proper avenue for such an
appeal”).
We also hold, applying the same analysis, that Rooker-
Feldman bars O’Malley’s Eighth Amendment claim that
it was a violation of his rights to force-feed him at all
since he was willing to eat in response to the state court’s
order. We interpret this claim, which the district court did
not distinguish from O’Malley’s other Eighth Amendment
claims, as intended to invoke the Eighth Amendment
excessive-force standard. That standard demands an inquiry
“whether force was applied in a good-faith effort to main-
tain or restore discipline, or maliciously and sadistically
cause harm.” Harper v. Albert, 400 F.3d 1052, 1065 (7th Cir.
2005) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).
O’Malley contends that Bohlmann and Seldin force-fed him,
not because they believed it was medically necessary, but
because they wanted to punish him for causing them
inconvenience through his fast. But the decision of the state
court was precisely that feeding O’Malley by force was
necessary under the circumstances, and so the claim runs
straight into Rooker-Feldman.
O’Malley argues that he had a right to an opportunity
to resume eating voluntarily before the state-court order
was executed, and that there is a genuine issue of material
fact whether he was deprived of that right when the defen-
dants first failed to tell him the order existed, and later
No. 05-3415 9
refused to release him upon his promise to eat. But we will
not entertain the multiple questions of fact implicit in these
arguments—whether the allegation that O’Malley was not
told about the order is true (the defendants dispute it);
whether the defendants would have given him a chance to
eat if they had received his promise to eat before he was
restrained; whether a reasonable person would have been
compelled to believe his promise at any time; and whether
it would have been prudent or safe to allow him to
eat—because we can see no basis for his argument that he
had a right to thwart execution of the order by eating
voluntarily once the order was made known to him. The
“fail[ure] to stop,” as the district court terms it, seems to us
merely the other side of the coin from carrying out the state
court’s order. O’Malley points to Walker, 286 F.3d at 710,
where the district court allowed the inmate-plaintiff to
proceed past summary judgment on an Eighth Amendment
claim because it found a genuine question of material fact
concerning whether he had agreed to eat in order to avoid
force-feeding. The Third Circuit, however, did not even
consider the application of Rooker-Feldman to the Eighth
Amendment claim, so we do not find its opinion helpful
on this point.
We turn now to O’Malley’s claims involving the execution
of the order to force-feed. These, we agree, are not barred by
Rooker-Feldman, but we also agree with the district court that
no reasonable factfinder could have found in O’Malley’s
favor. The fact that he was stuck three times while the nurse
was placing his IV line does not establish use of excessive
force. An Eighth Amendment claim cannot be predicated on
a de minimis use of force. See Fillmore v. Page, 358 F.3d 496,
504 (7th Cir. 2004). Nor does the application of five-point
restraints constitute excessive force in this context. The
defendants presented evidence at summary judgment that
10 No. 05-3415
O’Malley promised to “fight to the death” to resist being fed
intravenously, and O’Malley himself concedes that he told
staff he would pull the tubes out if they attempted to force-
feed him. Further, when the defendants first warned him of
the impending force-feeding after obtaining the order, he
had what he says was a post-traumatic-stress-disorder reac-
tion and scratched up his forearms. He later claimed that he
resisted only because he thought the defendants meant to
force-feed him illegally, but the defendants could not be
expected either to anticipate, or if they anticipated, to
believe such a claim. Moreover, with respect to his claim
that the restraints were too tight, we note that they
were checked and adjusted by a nurse immediately after
they were applied, and that they were adjusted at his
request several times over the 21-hour period. O’Malley has
submitted photographs of marks on his skin that he con-
tends were caused by the restraints, but the injury is not so
severe as to give rise to a genuine question of material fact
whether the restraints were applied to punish rather than
restrain. In addition, we do not think it unreasonable for the
defendants to have refused to let him get up to use the
bathroom. We note that they did not simply ignore his need
to urinate. They offered him a urine bottle, and ultimately,
when he persisted in his claim that he could not urinate in
that position, relieved him through use of a catheter.
O’Malley’s strongest claim is that Bohlmann was de-
liberately indifferent to his suffering from lying in his own
vomit for several hours; he has submitted a photograph of
what appear to be burns at the base of his spine. Bohlmann,
in his affidavit in support of his motion for summary
judgment, stated that the marks “were in the nature of a
minor irritation or sunburn,” but like the district court,
we are willing to assume that the pain from these burns
constitutes an “objectively serious medical condition,” one
No. 05-3415 11
requirement of an Eighth Amendment failure-to-treat claim.
See Johnson v. Snyder, 444 F.3d 579, 584 (7th Cir. 2006).
However, O’Malley presented no evidence concerning the
second element of his claim: that Bohlmann showed deliber-
ate indifference to his condition. See id.; Norfleet v. Webster,
439 F.3d 392, 395 (7th Cir. 2006).
Deliberate indifference is “essentially a criminal reckless-
ness standard, that is, ignoring a known risk.” Johnson, 444
F.3d at 585 (citation and quotation marks omitted). But
Bohlmann was not present during the early morning hours
when O’Malley began to vomit; nor does he appear to have
failed in any duty to instruct others to care for O’Malley.
The videotapes show that the guards were reasonably
responsive to O’Malley’s calls for help, and that attendants
wiped him down several times. Bohlmann admitted at
summary judgment that he received a report by phone at
about 4:30 a.m. that O’Malley had vomited and was ask-
ing to be released from the restraints. He said that he
refused this request because he did not consider it “medi-
cally appropriate,” but that he did order that O’Malley be
given antacids and a medication to suppress nausea. And
the videotapes show that the medication was given.
Bohlmann did not say, and there is no evidence, that he
refused a request to have O’Malley’s back wiped off. In fact,
O’Malley’s back did not appear to cause him significant
distress until after 5 a.m. At that point, he did have to wait
about an hour and a half for attendants to arrive and lift him
up so his back could be wiped; he was told by a guard that
the delay was because of a shift change. But we cannot see
how this amounts to deliberate indifference on Bohlmann’s
part.
Therefore the district court’s judgment is modified to
make it jurisdictional with respect to the RLUIPA claim and
12 No. 05-3415
the claim that force-feeding at all was a use of excessive
force, and as so modified, is AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-16-06